Citation Nr: 1823262
Decision Date: 04/18/18 Archive Date: 04/25/18
DOCKET NO. 13-12 041 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to an initial rating in excess of 30 percent for anxiety disorder with depressive disorder not otherwise specified (NOS).
3. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine.
4. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy.
5. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy.
6. Entitlement to a rating in excess of 10 percent for right knee medial scar, with residuals of medial collateral ligament repair and arthritis.
7. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disabilities (TDIU).
ORDER
Entitlement to an initial rating in excess of 30 percent for anxiety disorder with depressive disorder NOS is denied.
Entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the left lower extremity from March 17, 2010 is granted.
Entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the right lower extremity from March 17, 2010 is granted.
FINDINGS OF FACT
1. Throughout the period on appeal, the Veteran's anxiety disorder has not been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood.
2. From March 17, 2010, the Veteran has radiculopathy of the left lower extremity that most nearly approximates moderate incomplete paralysis of the sciatic nerve.
3. From March 17, 2010, the Veteran has radiculopathy of the right lower extremity that most nearly approximates moderate incomplete paralysis of the sciatic nerve.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 30 percent for anxiety disorder with depressive disorder NOS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9413 (2017).
2. The criteria for an initial rating of 20 percent, but no higher, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 8721 (2017).
3. The criteria for an initial rating of 20 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 8721 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1977 to January 1982. He also served with the Army National Guard from February 1989 to March 2001, although the character and dates of his National Guard service have not yet been verified.
This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony during a Board hearing before the undersigned in December 2015. In June 2016, the Board remanded this matter for further evidentiary development.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R.
§ 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10.
If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
Anxiety Disorder with Depressive Disorder NOS
The Veteran's anxiety has been rated as 30 percent disabling effective January 23, 2012 under Diagnostic Code 9413, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130.
Under the General Rating Formula, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id.
A 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent disability rating is justified when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationship. Id.
A 100 percent disability rating is reserved for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442.
A September 2012 VA treatment record reflects that the Veteran was seen for mental health evaluation. Upon observation, it was noted that the Veteran was amicable and cooperative. He was somewhat digressive and tangential, but less so than initially. He was still frustrated, but generally less angry with understanding his options in the VA system. He was still moderately depressed. He was not having acute suicidal ideation, but did have intermittent thoughts that only suicide would bring relief; he reported no specific plan and was willing to return for continued follow-up. He reported having a short fuse if provoked, but stated that his base-line anger also seemed decreased. In regards to his thought process, there were no overt signs of acute psychosis or history of the same. There was no cognitive deficiency. The Veteran reported that his insomnia was mostly related to pain and he had gradually accepted taking prescribed medication. The examiner noted that the Veteran's capacity for medical decision-making was adequate.
The Veteran was afforded a September 2012 VA examination. Symptoms attributable to his diagnosis of anxiety disorder were panic attacks weekly or less often, excessive worry about physical health, rumination on past relationships, possible increased debility in the future, and current physical limitations. Symptoms attributable to his diagnosis of depressive disorder NOS were daily depression, insomnia, fatigue, and feelings of worthlessness. The examiner indicated that the Veteran's anxiety and depressive diagnoses were interrelated and affected his functioning in tandem. The Veteran's symptoms that applied to his diagnoses were noted as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships.
A January 2014 VA treatment record reflects the Veteran's report that since his last visit with a psychiatrist, he had not been taking any medications for the past year or more. He reported doing well in terms of no acute depressive symptoms, felt well without the medications, expressed that he had more stressors, but previous conflict with his girlfriend had improved. The Veteran described his mood as being good except around the holidays in December when he was feeling down, but working on the computer, reading, and doing yard work helped him. He denied any low energy or anhedonia, had good motivation and desire to do activities and be engaged in the environment around him, kept himself busy, and slept well. He had no concerns with sleep. He also reported having a good appetite and enjoyed working on his computer, interacting with friends, and listening and dancing to music. The Veteran denied any nihilistic thoughts and did not have any feelings of hopelessness or worthlessness. He further denied any suicidal or homicidal ideation. He did not have any symptoms of anxiety. He remained calm and denied any episodic anxiety or panic attacks. He did not have any symptoms of generalized anxiety disorder, such as worrying, restlessness, or sleep disturbance. He also did not have any psychotic or manic symptoms. The Veteran had no history of psychiatric hospitalization since 1996. Upon mental status examination, the Veteran was alert, calm, and cooperative. He was well-dressed and had good hygiene. He had good eye contact. The Veteran's speech had normal rate and volume and he was well-articulated. His thought process was logical and goal directed. There were no delusions elicited and the Veteran denied any perceptual disturbances. His mood was good and affect was full range, average intensity, and appropriate to context and situation. He denied any suicidal or homicidal ideation. Insight and judgment were good and there were no cognitive deficits elicited. The Veteran was diagnosed with major depressive disorder, recurrent, in remission. It was noted that he was capable of managing his financial affairs.
Most recently, the Veteran underwent VA examination in September 2016. The examiner noted the Veteran's history of mental health trouble, but specifically indicated that there was no current diagnosis. The Veteran reported that since his last VA examination in September 2012, he has continued to live with his girlfriend of 20 years with whom he enjoys spending time, watching television, and playing computer games. They assist her father who is ill and the Veteran prepares supper for him each day. A typical day for him includes watching TV and trying to do some outside work. He used to like to play sports, but his back pain has prevented him from doing much. He also enjoyed doing craft and wood work. The Veteran kept up with politics and played competitive computer games with others online. He also took care of his pet dog and cat. The examiner indicated that the Veteran has had two psychiatric consults in the past four years; one in September 2012 and the other in January 2014. He had not engaged in any other mental health treatment. The Veteran reported that he currently sleeps approximately four hours per day, and said that was normal. He took frequent naps during the day. The Veteran expressed wanting to be active, but he had significant back pain. He reported that it took him six days to mow the lawn, but he was determined to do it. He went grocery shopping and to Wal-Mart, and cooked. He did some woodworking. He enjoyed family gatherings at his girlfriend's father's home around the holidays and birthdays. His mood was irritable a lot of the times, especially then because he had no vehicle since the transmission went out in his truck, and he ended up sitting around a lot, which irritated him. The Veteran reported being a little hyperactive, probably from all the caffeine and nicotine he consumed daily. His appetite was not good. The Veteran denied self-esteem and concentrations problems, as well as nihilistic thinking and suicidal ideation. He stated that he worried about usual things, such as finances, state of the country, and his daughter. He also worried about his health and whether or not he would be able to get out of bed in the morning. Behaviorally, the examiner observed that the Veteran was on time for the scheduled appointment and he was cooperative and pleasant throughout the interview. His grooming and hygiene were good and he was dressed in casual attire, which was appropriate for the setting. The Veteran had visible pain behaviors in that he had difficulty rising out of the chair in the waiting room and in the examiner's office. He also had difficulty ambulating due to knee and back pain, and he had to hold onto the wall railings. He admitted that he had a walker on wheels with a seat, but he could not fit it into the trunk of his girlfriend's very small car. The Veteran's mood appeared to be euthymic, and he demonstrated a very good sense of humor. His affect was mood congruent. His psychomotor activity level was within normal limits but he reported that he was hyperactive much of the time. His receptive speech was within normal limits; his expressive speech was good, however he was observed to have a slight stutter. His thought processes appeared to be logical and goal-directed. His reality testing was good. He denied having delusions or hallucinations. His intellectual functioning appeared to be within the average range. His insight seemed to be fair. His judgment seemed to be good. The Veteran denied having suicidal or homicidal ideations and there were no safety concerns present at the time. It was further noted that he was capable of managing his financial affairs. The examiner reiterated that the Veteran did not meet the DSM-V criteria for any mental health disorders at the present time.
The Board finds that, based on the evidence of record, the Veteran's service-connected psychiatric disability does not warrant a rating in excess of 30 percent at any point during the period on appeal. The criteria for a higher disability rating of 50 percent contemplate occupational and social impairment with reduced reliability and productivity. In this case, however, during the relevant timeframe, the September 2012 VA examiner opined that the Veteran's service-connected psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms. His symptoms included depressed mood, anxiety, panic attacks that occur week or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The January 2014 VA treatment record showed that the Veteran he had not been taking any medications for the past year or more. He reported doing well in terms of no acute depressive symptoms, felt well without the medications, and expressed that his previous conflict with his girlfriend had improved. His mood was good except around the holidays when he was feeling down, but he engaged in hobbies that helped him. During the September 2016 VA examination, the Veteran reported that he was very close to his girlfriend and her family, helped to take care of her ill father, played computer games, did yard work when he could, and went grocery shopping. He had good motivation and desire to do activities and be engaged in the environment around him. He also enjoyed interacting with friends and listening and dancing to music. Most significantly, at the conclusion of the examination, the examiner determined that the Veteran did not meet the DSM-V criteria for any mental health disorders at the present time.
The Board finds that the Veteran's psychiatric disability has actually improved throughout the period on appeal. Importantly, at no time during the appeal have his symptoms resulted in occupational and social impairment that more nearly approximates the level contemplated in the criteria for a 50 percent disability rating. This finding is supported by the symptoms associated with the Veteran's psychiatric disability. The Board notes that the symptoms contained in rating schedule criteria are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, it is significant to note that the Veteran did not exhibit a flattened affect, circumstantial, circumlocutory, or stereotypical speech, or panic attacks that occurred more than once a week during the period on appeal. In addition, he had no difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, or impaired abstract thinking. Moreover, the Board notes that during September 2012 VA treatment, while the Veteran reported having intermittent thoughts that only suicide would bring relief, he reported no specific plan and was willing to return for continued follow-up. He has since denied having any suicidal ideation.
The Veteran asserted in the February 2018 Appellant's Post-Remand Brief, that although he may have reported an "upbeat" scenario regarding his mental health issues, he still experiences flare-ups when daily living causes him to have to respond to things like family issues, thereby causing him to be less effective in his occupational and social relationships, warranting a rating in excess of 30 percent. However, despite this report of difficulty in establishing and maintaining effective work and social relationships, the Veteran has not displayed occupational and social impairment with reduced reliability and productivity due to his psychiatric symptoms. The Veteran reported difficulty working, but attributed his limitations to his physical disabilities. He also consistently demonstrated the ability to maintain relationships, such as with his girlfriend, her family, and other gamers, and he demonstrated no impairment in memory, thought processes, speech, grooming and hygiene. Accordingly, the Board concludes that the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent for the Veteran's anxiety disorder with depressive disorder. 38 C.F.R. § 4.7. For this reason, there is no reasonable doubt to be resolved.
Bilateral Lower Extremity Radiculopathy
Under DC 8721, mild incomplete neuralgia of the external popliteal nerve warrants the current 10 percent rating. 38 C.F.R. § 4.124a. Moderate incomplete neuralgia of the external popliteal nerve warrants a 20 percent rating. 38 C.F.R. § 4.124a, DC 8721. Severe incomplete neuralgia of the external popliteal nerve warrants a 30 percent rating. Id. Complete paralysis of the external popliteal nerve with foot drop and slight drop of the first phalanges of all toes, inability to dorsiflex the foot, loss of extension (dorsal flexion) of proximal phalanges of the toes; lost abduction of the foot; weakened adduction; and anesthesia covering the entire dorsum of the foot and toes warrants a 40 percent disability rating. Id.
In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is sensory, the rating should be for the mild, or at most, the moderate degree.
In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R.
§ 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.
In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123.
The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.
It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.
The Veteran's service-connected left and right lower extremity radiculopathy has been rated under the provisions of Diagnostic Code 8721. The Veteran contends that his bilateral lower extremity radiculopathy is more severe than the current rating reflects.
A July 2008 VA treatment record shows bilateral radiculopathy manifested as sensory loss and pain down both lower extremities. A July 2008 MRI of the lumbar spine confirmed a finding of radiculopathy at L3-L4-S1on the right with associated radiculitis of the L3-L4-S1 nerve roots bilaterally.
An April 2010 private treatment record at Radiology Consultants reflects the Veteran's complaint of periodic right leg tingling and numbness.
November 2010 and February 2011 VA treatment records reflected a continued diagnosis of lumbar radiculopathy. The Veteran received epidural injections to manage his symptoms. An April 2011 VA treatment record reflected the Veteran's complaint of low back pain with sharp, burning in nature numbness and tingling radiating down to his right leg.
A September 2012 VA lumbar spine examination showed that strength and reflexes in the left lower extremity were normal and there was no evidence of radiculopathy.
Most recently, the Veteran underwent VA examination in September 2016. Symptoms attributable to the Veteran's left lower extremity radiculopathy included moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength was normal and there was no muscle atrophy present. Reflexes were also normal. The Veteran had an antalgic gait due to his low back condition. There were no trophic changes. The examiner indicated that the Veteran's left incomplete paralysis was moderately severe. The Veteran reported the constant use of a cane. The examiner indicated that there was no functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.
Symptoms attributable to the Veteran's right lower extremity radiculopathy included moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. He did not have muscle atrophy and reflexes were normal. The Veteran had an antalgic gait due to his low back condition. There were no trophic changes. The examiner indicated that the Veteran's right incomplete paralysis was moderately severe. The Veteran reported the constant use of a cane. The examiner indicated that there was no functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.
Upon review, the Board finds that an initial rating of 20 percent, but no higher, is warranted for the Veteran's left and right lower extremity radiculopathy. The September 2016 VA examiner specifically characterized the Veteran's left and right lower extremity radiculopathy as no more than moderately severe in severity and affecting the left and right sciatic nerve. Despite a September 2012 VA lumbar spine examination, which noted no evidence of radiculopathy, the Board will resolve any doubt in the Veteran's favor and find that left and right leg radiculopathy has most nearly approximated incomplete paralysis of the left and right sciatic nerve that is no more than moderate throughout the period on appeal. Thus, an initial 20 percent evaluation is warranted from March 17, 2010. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
REMAND
Bilateral Hearing Loss
While additional service personnel records, service treatment records, and records containing summaries of retirement points have been associated with the record since the Board's remand, in June 2016, it remains unclear whether the Veteran was serving during a period of active duty, ACDUTRA, or INACDUTRA at the time of a September 1992 and June 1997 periodic examination documenting the presence of bilateral hearing loss for VA purposes during the Veteran's National Guard Service. It appears that the Veteran may have been serving during a period of INACDUTRA at the time of the June 1997 periodic examination, but such is less clear regarding the September 1992 periodic examination. As the exact dates of these periods of service are still unclear, such must be ascertained to adjudicate the claim. Stegall v. West, 11 Vet. App. 268 (1998).
Lumbar Spine Disability
Pursuant to the June 2016 Board remand, the Veteran was afforded a VA examination in September 2016. With a regards to flare-ups, the Veteran reported having flare-ups in the form of low back pain when bending over to do landscaping or similar activities. The examiner indicated that the examination was not being conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner also indicated that pain, fatigue, and lack of endurance significantly limit functional ability with flare-ups. The examiner was able to describe such in terms of range of motion.
In the February 2018 Appellant's Brief, the Veteran's representative argued that his flare-ups of severe back spasms that are incapacitating were not considered by the September 2016 VA examiner. The September 2016 VA examination report does not reflect that the Veteran reported severe back spasms as a symptom during flare-ups.
As the Veteran has presented statements concerning new or worsening symptomatology that was not considered by the examiner and the examination does not contain complete findings regarding the Veteran's flare-ups, namely regarding severe back spasms that are incapacitating, the Board must remand the claim for a new examination.
Right Knee
In the February 2018 Appellant's Post-Remand Brief, the Veteran asserted that the September 2016 VA examiner did not adequately assess his scar. He reported that his scar currently presents with itching and slight instability with pain, causing him to moderate his movements, all not acknowledged by the previous VA examiner.
Upon review, the Board notes that the September 2016 VA examination report does not include the Veteran's asserted symptoms of pain, itching, or instability. In fact, the examiner noted that the Veteran's scar was neither painful nor unstable. Thus, given the evidence of record, the Board finds that a new examination is necessary in order to assess the current severity of the Veteran's current right knee scar.
TDIU
The Board finds that the claim for TDIU is inextricably intertwined with the claims being remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Because adjudication of these claims will potentially affect the TDIU claim, adjudication of the Veteran's TDIU claim is deferred.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran's Army National Guard unit or other appropriate entity and request that it provide the exact dates of the Veteran's periods of ACDUTRA and INACDUTRA. A summary of these dates must be clearly set forth in the record.
2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected lumbar spine disability.
If possible, such examination should be conducted during a flare-up.
(a) The examiner should identify the current nature and severity of all manifestations of the Veteran's lumbar spine disability.
(b) The examiner should record the results of range of motion testing for pain on BOTH active and passive motion, AND on weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that so.
(c) If the Veteran endorses experiencing flare-ups of his lumbar spine disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation.
3. Schedule an appropriate VA examination to determine the current severity and symptomatology of the Veteran's service-connected scar on the right knee.
The examiner should describe any disabling effects of the scar and should indicate whether the scar causes limitation of function. The examiner is to describe the Veteran's symptoms associated with the Veteran's scar, and is to specifically note the Veteran's assertions as to pain, itching, and instability. See February 2018 Appellant's Post-Remand Brief.
4. Finally, readjudicate the appeal, to include the Veteran's claim for TDIU. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
______________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals
ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel
Copy mailed to: Disabled American Veterans
Department of Veterans Affairs